Property Rights: The Key to Freedom, Prosperity AND Equality
February 1, 2003
A speech by Lorne Gunter
to the Fraser Institute Student Seminar, Edmonton, Alberta
The right to own and enjoy property is the most basic human right.
Governments in the Western world now act as though the right to own
is all that's important. But being free to own property doesn't mean
you aren't also free to enjoy it -- to use it -- pretty much as you
The right to own and enjoy property is the fulcrum on which all other
balance. And it is not merely some American ideal; it's as Canadian
maple leaf and hockey.
But don't property rights apply only to the rich? If we build our
system around property rights only the wealthy will be free, right?
Two things: First, it is your right to own property, not just your
of property that makes you free. Frankly, the notion that only those
already own property benefit from property rights is Marxist. Merely
to preserve your right to own property at some point in the future,
government must restrain itself in the present. The right to own property
as much about potential ownership as actual ownership.
Second, our socialist age has far too narrow an understanding of
You likely already own far more property than you know. Property is
land and buildings. It's your ideas, your body, even your ability
to earn a
living using your ideas and your labour -- all of them are your property.
However, not only is our concept of property too narrow, distorted
Marxist, so too is our understanding of freedom. If you think you
can only be
free if the state guarantees equality of outcome for all, then this
speech will be lost on you.
Rather than equality of outcome, the best any state can do is work
equality of opportunity. Life's not fair -- or at least not equal
-- and it
never can be. Therefore it's futile, even self-destructive for a state
attempt to achieve equality of outcome. Indeed, since equality of
an entirely abnormal condition, it can only even be attempted through
coercion and force. So striving for equality of outcome is by its
destructive of freedom.
However, if the state works toward equality of opportunity for everyone,
it makes everyone equally free. Not equally rich, or equally endowed
material goods -- cars, yachts, summer homes, winter vacations --
free to pursue life to the maximum of their potential. Admittedly,
never be perfect equality of opportunity, but striving for it is preferable
to striving for equality of outcome.
"But I can't be free unless I have the same amount of "stuff"
as rich people,
otherwise luck or what family you were born into or connections or
education will give rich people an unfair advance over me." If
attitude, then you are guilty of class envy; you are not possessed
more-enlightened, morally superior understanding of equality.
Government cannot make life fair or equal. At best, it can remove
egregious impediments others impose on your ability to achieve your
potential. It might also ensure it imposes no egregious impediments
own on your freedoms, but that's probably too much to ask.
But when you insist government prove how equal everyone is by taking
and goods from richer people and giving them to you, it is clear the
government has not made the richer person freer. But it hasn't made
freer, either, no matter how much new "stuff" you've been
Freedom is non-transferable.
You cannot lighten your yoke by making someone else's yoke heavier.
cannot appropriate a portion of someone else's freedom for yourself.
us has been endowed by nature with an equal measure of freedom, thus
another's freedom is neither ours to take or give.
If the state plays Robin Hood, robbing from the rich to give to the
increasingly to the middle class), it certainly hasn't made the rich
They cannot even be said to be freer in a general sense because somehow
society as a whole has been made freer by being made "fairer."
There is no
such thing as collective freedom. Individuals have freedom; groups
power -- if my group has more numbers or more influence than your
can force you and yours to do as we wish. That's not freedom, it's
During his brief absence from elected office in the mid-1990s, I
to interview Joe Clark during a book tour. Before asking him questions
his book, I said, "Mr. Clark, tell me something, please. You
constitutional affairs minister during the drafting of the Charlottetown
accord. In the preamble to the accord, you and the other authors sought
enshrine both individual and group rights. It's often argued the two
mutually exclusive; a constitution may protect one or the other, but
both. So I've always wanted to know, how did you and the others propose
reconcile the two?"
Clark replied, "Hmm, no one's ever wondered about that before."
A senior cabinet minister -- a former prime minister -- plus 10 premiers
off and on for nearly a year to debate what shape our nation should
decades into the future. Each of them was backed up by some of the
bureaucratic and academic minds in the country and the provinces,
and yet not
one of them understood the intellectual dichotomy they were fabricating.
Anyway, you cannot be made freer by making someone else less rich,
only be made richer. He, however, can be made both poorer and less
But just how Canadian are property rights?
In 1999, the Manitoba Court of Appeal ruled that Prairie farmers
compelled to sell their grain to the Canadian Wheat Board. Even though
their grain, the fruit of their labour, the product of their investment
risk, it was not their property once harvested, because, according
court, "The right to 'enjoyment of property' is not a constitutionally
protected, fundamental part of Canadian society."
How utterly ridiculous and wrong. The court's ruling was -- as was
Clark's answer -- an example of how far the misunderstanding of property
rights extends into the Canadian establishment. Even senior jurists
Canada's constitutional history did not begin with patriation and
of Rights and Freedoms in 1982. It didn't even begin with the BNA
1867. It extends back nearly 800 years to the Magna Carta, in which
to own private property was already considered an "ancient"
Why then was the right to own property not explicitly enumerated
in the BNA
Act (now the Constitution Act, 1982)? Certainly not because it was
the dream of the Fathers of Confederation to establish a kinder, gentler,
collectivist nation in the northern half of North America.
The general reason was naivety.
There is no inherent suspicion of government in the Canadian constitution,
there is in the United States constitution. Indeed, our nation is
the principle of POGG -- peace, order and good government. The U.S.
constitution seeks instead to preserve life, liberty and the pursuit
happiness. But the origins of that difference are easy to understand:
Americans fought a war of independence from government; our Fathers
heirs of government -- British constitutional and parliamentary democracy.
Thankfully, since George III, that democratic tradition had evolved
century further. The monarch had lost most of his last remaining absolute
powers; something near universal suffrage for men, regardless of their
had been achieved; and responsible government was entering its early
The Fathers of Confederation believed though, erroneously, that government
was self-limiting because government was the purview of gentlemen
gentlemen would never presume to intrude on another gentlemen's property,
money, family or private pleasures.
The specific reason for the omission of property protection is more
It's not as though the Victorians placed no value on the preservation
private property. Queen Victoria herself, the last truly Imperial
monarch, declined to enter any private home, even the cottage of her
subject, unless the owner invited her in. She understood his home
And property is mentioned half a dozen times in the BNA Act. It's
concentrated in a single clause that assures Canadians the right to
enjoy it. Why?
For one thing, the Fathers all understood the unwritten constitutional
heritage which Canadians were inheriting, namely the English constitution,
which, while never formally codified was nonetheless powerful. As
explain in a minute, the English constitution held that the right
property as one of three absolute rights. The Fathers knew this. The
and politicians of the day knew it; the scholars and philosophers,
was obvious to anyone who cared to look, why write it down?
Sir John A. Macdonald also wanted an enumerated right to property
because -- if you can believe this -- he thought its omission would
preserve the right. The BNA Act already gave the provinces exclusive
jurisdiction over the laws and regulations governing property. Macdonald
feared a single property-rights clause would leave the provinces with
much power to grant and take property rights. Better to weave the
throughout the document so Ottawa might still play a role. The federal
government, he reasoned, would be a superior guarantor of property
Besides the Senate was originally designed as a propertarian institution.
be appointed, one had to possess a considerable amount of private
Macdonald and the other Fathers thought that such a body of wealthy
landholders would never permit property rights to be trammelled. Of
the Senate never performed that function. It quickly became a repository
party bagmen who did what their appointers told them, whether or not
impinged on their own property rights.
Yet even if the Fathers of Confederation understood basic English
constitutional rights and Common Law better than their modern day
counterparts -- better certainly than the Manitoba Court of Appeal
were naive about the benevolence of government, or how government
mutate into the modern monstrosity it has become.
But the authors of the Charter of Rights and Freedoms had no such
didn't they insert a property rights clause in 1981? After all, Pierre
Trudeau claimed from the time he retired until the day he died that
for the Charter was the preservation of individual liberties against
encroachment of the state.
Well, of course, the Charter was never really intended as a citizens'
against the abuses of absolute power. It was only ever about empowering
state, about making it the gatekeeper for politically correct rights,
granting it the authority to reengineer society, to coerce the so-called
majority to act as the state wishes in the name of progress for favoured
In this "great" document, the Charter, which its authors
and fans still
insist is the great guardian of the individual against the tyranny
state, property rights were left out -- even though they are the fundamental
human right -- because provincial governments in Saskatchewan, Quebec,
Edward Island and elsewhere feared such a clause would limit their
nationalize businesses and expropriate land. Duh.
In an interview for Volume 11 of the book series Alberta in the 20th
former Alberta premier Peter Lougheed said only Manitoba was keen
rights. That province's premier, Sterling Lyon, proposed their inclusion
the Charter. But, fearing the loss their power, other provinces balked
in Lougheed's words, "this was a very short, 10-minute bargaining
Property rights were on and off the table in under a dozen minutes.
Despite the insignificance placed on property by modern Canadian
decision-makers, Canadians actually do have a strong tradition of
protection for private property. William Blackstone, an 18th Century
scholar, wrote "Commentaries on the Laws of England," which
nearest thing Britain has to a constitution. In it, Blackstone enumerates
three absolute rights that are each subjects by nature: Personal security,
including protection against arbitrary search and seizure, and against
and unusual punishment, and including the absolute right to self-defence.
argued that a free Englishman had the right to kill anyone found on
property uninvited after dark, even an agent of the King, since it
impossible to know reliably the intent of such an intruder and because
could end up dead if he delayed long enough to ascertain whether the
trespasser meant him harm.
Blackstone also claimed personal liberty as an absolute right --
incorporates freedom of movement, action, speech and thought -- and
to own and enjoy private property.
To protect these three absolute rights, Blackstone argued that English
had developed five auxiliary rights: a parliament that was free to
own agenda, to decide for itself when it sat and rose, and which controlled
spending and taxes; limits on the prerogatives of the King, due process
law, the right to petition the King or the courts for redress from
one has suffered, and the right to bear arms, for protection from
government as much as from foreign armies.
Yes, the right to keep and bear arms is a Canadian tradition, too.
a talk for another day.
Blackstone did admit the absolute rights -- personal security, personal
liberty and private property -- were subject to regulation by King
parliament through due process of law. But he quickly added such limits
have to be imposed very rarely and as lightly as possible, or the
limited would become meaningless. It would be wrong, Blackstone explained,
expropriate land in the name of the common good, say for a road, since
ultimate common good was "the protection of every individual's
But the title of this speech is Property Rights: The Key to Freedom,
Prosperity AND Equality. We, done freedom. But how do property rights
western nations richer and their citizens more equal?
I have come across no better description of how property rights make
rich than Hernando de Soto's The Mystery of Capital: Why Capitalism
in the West and Fails Everywhere Else. De Soto, a Peruvian economist,
teams of researchers to a host of countries to determine why industrial
nations are wealthy and Third World nations are not. He and his associates
concluded the differences are the result not of racism. They are not
hangover from colonialism. Nor the result of greed or of the First
using its superior technology and knowledge to take advantage of the
The differences arise from the lack of secure property rights in
Where it is next-to-impossible to secure title to one's home, business,
or investments, it will be difficult to secure mortgages, working
To understand just how ingrained property rights are in the West,
think of a
home-shopping channel and one of those beautiful lapis lazuli horses
clock in its belly that it has so often tempted you with. One night
resist no longer. You call, tell the operator who is standing by of
to buy the item, she takes your credit card number, uses her computer
authorization and -- presto -- that exquisite timepiece is yours.
The shopping channel has offered it, you have accepted their offer
agreeing to their price, and you have given consideration through
card payment. In a matter of seconds, with no more effort than it
order a pizza, you have executed a binding contract that instantly
an ownership interest in a clock your children and grandchildren can
appreciate for generations to come. Even if the shopping channel goes
before your fine clock can be shipped, your credit card receipt proves
yours. You can sue for its delivery and no court -- with the possible
exception of the Manitoba Court of Appeal -- would refuse to recognize
that clock is your property.
Remember, this rather complex property transfer occurred in a matter
Now consider that in Lima, registering the title to a home involves
separate steps, which is a snap compared to opening a business legally.
team of de Soto's researchers "spent six hours a day at it and
registered the business -- 289 days later." The cost for registering
one-worker garment-making shop was more than $1,200 US, the equivalent
31-months pay for that lone worker. It's small wonder that most Peruvian
entrepreneurs choose to operate their businesses illegally when doing
properly takes 10 months and consumers nearly three years wages that
paid to a worker whose labours would generate income for the entrepreneurs.
In the Philippines, registering a home can take 25 years and require
visits to public and private agencies. In Egypt, at least 10% of homes
illegal because getting a permit to build one legally can now take
up to 14
De Soto, surprisingly, found that Haitians, the poorest residents
Western hemisphere, had assets and savings the equivalent of 50 years
foreign aid, they just had no way of using those assets and savings
collateral to build up the capital needed to make them wealthy. According
de Soto "They hold their assets in defective forms" as "dead
Far from property rights not being "a fundamental part of Canadian
they are in fact so integral, so accepted, so culturally engrained,
give their importance a second thought, which is why we are at risk
the very rights that make us free and prosperous.
But how do they make us equal?
I want to give two examples rather briefly -- segregation and smoking.
Racial bigotry is ugly. But I maintain that far from ending segregation
faster, government action actually kept African-Americans in the U.S.
down longer. Property rights, properly understood and applied, would
ended segregation sooner.
It must be remembered that blacks were kept from eating at lunch
riding in the fronts of buses by local and state laws -- by government
actions -- not only by the prejudices of individual citizens. When
moved to force desegregation, it sent federal marshals and the National
against public institutions and state governments -- public schools
Arkansas, public universities in Alabama and public transit in Mississippi
not against individuals.
It is reasonable to assume that in the absence of laws forbidding
seating of blacks, some entrepreneurs would have had integrated lunch
counters years earlier. Admittedly, it would have first been those
entrepreneurs nearest black neighbourhoods and shanty towns. Those
fringes of such ghettos, where there was some spill-over business
African-Americans and where fewer whites would have been troubled
integration, would have followed. Finally, those in mostly white districts
would have switched, at a much slower pace.
By protecting the right of individual restaurateurs to use their
as they saw fit, southern governments would have created a system
individuals were free to decide with whom they wished to do business
associate, or not. Segregation wouldn't have been total or swift,
would have been free and consensual.
It's true there would be some segregated businesses to this day under
property rights system, and as such modern liberals could never tolerate
-- they are completely totalitarian in their quest for universal tolerance.
But there is no compelling intellectual reason why we should be made
government to permit men in our clubs, or whites in our restaurants
on our own, private golf courses.
The public square is very different. Where public institutions are
there is no compelling intellectual reason to tolerate segregation.
must show no favour based on immutable human characteristics.
It is also true that segregation was held in place by more than local
state laws. It was also preserved by social coercion and intimidation,
often by the Ku Klux Klan and similarly clandestine organizations.
it, a lot of Southern whites were horrible bigots.
But again, if governments had understood their proper role, they
defended property rights against such coercive bigotry. One of the
critical functions of government in a free society is to preserve
to property and contract. If thugs, murderers, and vandals were destroying
property and intimidating property owners, then the state should have
interceded on behalf of property rights and the right of property
serve whomever they pleased.
It's the same role the state should play today vis-a-vis gay rights,
feminism, hate crimes, and so on.
And vis-a-vis so-called public smoking.
As I said earlier, we have far too narrow an understanding of property
days. But we also have far too narrow an understanding of what constitutes
"private," too, as can seen in the dispute over smoking
in "public" and
A restaurant is not a public place. Nor for that matter is a movie
a shopping mall. No privately owned place becomes public just because
public is invited in, since the decision to enter ultimately remains
private one. Also, the ownership remains private, the legal responsibility
for injury or loss there remains private, and so on.
If you want to enter a private business in which smoking is permitted,
choice is yours. You have the freedom to enter or not. You do not
however, the right to demand that the government dictate conditions
made to your liking just, so there are no adverse consequences to
The same is true of workers. They may choose to work, or not, at
establishments, but they have no inalienable right to work at any
please, and thus no "right" to demand their place of work
be smoke-free so
they are not exposed to the allegedly harmful effects of secondhand
Too often we think we cannot be free unless someone else, through
is compelled to shield us from the consequences of our choices and
Sorry, that's not freedom, it's a sort of licentious dependency --
on someone else to take the fall, pay the price or bear the burden,
so we may
do as we please.
Property rights can be boiled down to a simple lesson from our youth
touch other people's stuff. And that includes not only their homes
but their incomes, their ideas, their families, businesses, schools,
Without property rights -- full, robust and free from state interference
we will never be truly free. And while we might be the same, we will
equal, either. Nor will be prosperous for long.
Columnist, Edmonton Journal
Editorial Board Member, National Post
132 Quesnell Cres NW
Edmonton AB T5R 5P2